Wednesday, April 2, 2008

The "Aha!" Factor

We live in an age of instantaneous perception. By that, I mean that most of the public – those people who make up jury pools – are looking for the simplest path to a solution, regardless of how complex a situation might be.

Thanks to the magic of television, news and political ads are given to us in thirty-second bursts where complex issues are boiled down to their simplest components. Entertainment shows present story lines in half an hour or an hour. Detached reflection on the important issues of the day is rare; people simply do not have time for it.

For those involved in civil litigation, this expectation for instant answers must be factored into the valuation of every case. The side which can explain its position in the simplest terms has a leg up. The side that can present the essence of its case in such a way that people experience an "Aha! That’s it!" moment, will be the odds-on favorite. Such moments can move the value of a case significantly away from the center of the litigation bell curve. Conversely, the more time needed to explain things, the more problematic a litigant’s chances will be.

People tend to be skeptical of lawyers and their clients, so they look for the "common sense" or the obvious answer. "A picture is worth a thousand words," as someone once said. This is why, for example, an objective injury is far more compelling than a subjective one. A broken leg is more convincing than a whiplash.

The effect of this phenomenon is that in a long trial, people on juries are inclined to focus on bits and pieces of evidence, rather than on the big picture. For example, early in my career I was involved in a civil trial arising out of an intersection collision. The plaintiff had the right of way, and the only real question for the jury was the extent of the soft-tissue injuries resulting from the accident. During direct examination of the plaintiff, her attorney introduced as an exhibit a small exercise device that had been prescribed for his client, and she explained how she used it daily. On cross, one of the defense attorneys pointed out that the bag in which the equipment came still had its packing talc, indicating that it had been used only rarely, if at all. That was an "Aha!" moment, which resulted in settlement shortly afterward at a lower figure than the plaintiff and her attorney would otherwise have expected.

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